Judge: Cherol J. Nellon, Case: 20STCV13378, Date: 2023-04-24 Tentative Ruling

Case Number: 20STCV13378    Hearing Date: April 24, 2023    Dept: 28

Defendant Sang Nguyen’s Motion to Compel Deposition of Plaintiff Ruben Arreola; Defendant Sang Nguyen’s Motion to Compel Deposition of Plaintiff Ruben Arreola, Jr.

Having considered the moving and opposing papers, the Court rules as follows.

BACKGROUND

On April 6, 2020, Plaintiffs Ruben Arreola (“Arreola”) and Ruben Jr. Arreola (“Arreola Jr.”) filed this action against Defendants Green Messengers, Inc. (“GM”) and Sang Nguyen (“Nguyen”) for negligence, negligence per se, and statutory liability.

Nguyen filed an answer on October 13, 2020. On February 8, 2022, GM filed an answer. On March 22, 2023, the Court dismissed Arreola Jr.’s claims, without prejudice, pursuant to Plaintiffs’ request.

On December 12, 2022, Nguyen filed a Motion to Compel Plaintiff Ruben Arreola’s Deposition to be heard on April 3, 2023. On March 20, 2023, Arreola filed an opposition.

On December 12, 2022, Nguyen filed a Motion to Compel Plaintiff Ruben Arreola Jr.’s deposition to be heard on April 3, 2023.

On March 20, 2023, Arreola filed an opposition. The Court continued the hearings on the motion to April 24, 2023.

Trial is currently scheduled for October 12, 2023.

PARTY’S REQUESTS

Nguyen requests the Court compel Arreola to appear for a deposition within 15 days of the hearing on the motion. Nguyen also requests the Court impose $1,110.00 in sanctions on Arreola.

Nguyen requests the Court compel Arreola Jr. to appear for a deposition within 15 days of the hearing on the motion. Nguyen also requests the Court impose $1,110.00 in sanctions on Arreola Jr.

Arreola requests the Court deny the motions as moot.

LEGAL STANDARD

Code of Civil Procedure § 2025.450 allows the Court to compel a party’s appearance and to produce documents.

“If, after service of a deposition notice, a party to the action… without having served a valid objection… fails to appear for examination, or to proceed with it, or to produce for inspection any document or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document or tangible thing described in the deposition notice.” A motion under subdivision (a) shall comply with both of the following: (1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents or things described in the deposition notice, by a declaration stating the petitioner has contacted the deponent to inquire about the nonappearance.”

CCP § 2025.450 provides that if a motion made under 2025.450 is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

Misuse of the discovery process includes (c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense; (d) Failing to respond or to submit to an authorized method of discovery; and (h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery. CCP § 2023.010.

DISCUSSION

Arreola Jr.

Arreola Jr. was dismissed as a plaintiff on March 20, 2023. This motion is made pursuant to CCP § 2025.450(a), which only provides a basis for a motion to compel a party. Arreola Jr. is no longer a party to this action. Nguyen needs to file a new motion, under CCP § 2020.010, in order to compel the deposition of a non-party. As Arreola Jr. is no longer a party, he must also be served with such a motion pursuant to the rules outlined in CRC Rule 3.1346.

This motion is moot.

Arreola

Nguyen alleges he has attempted to set Arreola's deposition three times since May 2022. Arreola objected to all three notices on the basis of unavailability, alone. At the time of filing this motion, Arreola had yet to provide any dates for his deposition.

Arreola states he agreed to attend a deposition on April 6, 2023, April 10, 2023, or April 12, 2023. The Court previously continued the motion to allow parties an attempt to resolve this outside of Court.

The Court is unaware if any of the deposition dates went forward. As this motion remains on calendar, the Court assumes that Arreola’s deposition did not occur. Therefore, the Court finds good cause to grant the motion. Nguyen has diligently attempted to take Plaintiff’s deposition for almost a year, but Plaintiff has failed to provide available dates.

Arreola also states that Nguyen failed to comply with the Court requirement to bring an IDC prior to the hearing on this motion; this is wrong. The Court does not require an IDC prior to the hearing on a motion to compel a plaintiff’s deposition.

The Court finds a basis for imposition of sanctions, as there is no evidence to support that Arreola acted with substantial justification. Providing potential dates almost a year after the original notice of deposition was served does not demonstrate diligent attempts to comply with discovery obligations.

Nguyen requests $1,110.00 in sanctions but provides no explanation as to how this amount was calculated. The moving papers indicate that an explanation was intended to be offered in the Declaration of Mark Bennett, but the declaration does not address the issue of

sanctions. The Court grants $810.00 in sanctions, based on 3 hours of attorney’s work at a reasonable rate of $250.00 per hour, and 1 $60.00 filling fee.

CONCLUSION

Defendant Sang Nguyen’s Motion to Compel Deposition of Plaintiff Ruben Arreola is GRANTED. Arreola is ordered to appear for his deposition within 30 days of the hearing on the motion.

Defendant Sang Nguyen’s Motion to Compel Deposition of Plaintiff Ruben Arreola, Jr. is MOOT.

Defendant Sang Nguyen’s Request for Sanctions is GRANTED, as to Arreola. Arreola and Arreola’s counsel are ordered to pay Nguyen $810.00 in sanctions within 30 days of the hearing on the motion.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.